Supreme Court going all Catholic and Jewish?

What do you get when six Catholics, two Jews and a Protestant walk into a courtroom?

You might get the current Supreme Court. But not for long.

It turns out that Supreme Court Associate Justice John Paul Stevens, the court’s leading liberal who is expected to retire after this session, is the only Protestant on the bench. Not the only mainline Protestant—the only Protestant. Period.

With the leading front-runner to fill Stevens’ seat being Elana Kagan—remember that name?—it’s very possible that the nation’s highest court, only recently dominated by Protestants, could be down to none.

Obviously, Supreme Court justices are much less influenced by religious beliefs when interpreting the law and the Constitution than politicians are when writing it. So, despite what some critics who feel the court should better represent the American public are saying, I don’t see this as a big deal. (I’m also still a bit surprised by the revelation, to me at least, that Stephen Breyer is Jewish.)

Still, Nina Totenberg’s report on this phenomenon, which just kept we awake on my morning drive, is fascinating for the perspective it provides on what’s often considered a third rail of the Supreme Court:

Let’s face it: This is a radioactive subject. As Jeff Shesol, author of the critically acclaimed new book Supreme Power, puts it, “religion is the third rail of Supreme Court politics. It’s not something that’s talked about in polite company.” And although Shesol notes that privately a lot of people remark about the surprising fact that there are so many Catholics on the Supreme Court, this is not a subject that people openly discuss.

In fact, six of the nine justices on the current court are Roman Catholic. That’s half of the 12 Catholics who have ever served on the court. Only seven Jews have ever served, and two of them are there now. Depending on the Stevens replacement, there may be no Protestants left on the court at all in a majority Protestant nation where, for decades and generations, all the justices were Protestant.

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Does it matter? Should it matter? Should it be discussed in polite society?

“It would certainly raise a lot of eyebrows,” says University of Virginia professor Henry Abraham. “I don’t know whether it matters. Speaking idealistically, to me, the only thing that matters is competence, quality, education, ability, morals, and so forth.”

Ave Maria law school dean emeritus Bernard Dobranski agrees — but adds, “I think it would certainly raise questions with some people, and some people would be suspicious.”

“All of the justices who are on the bench now were appointed because of their constitutional views, and I don’t think any of them are allowing their religious views to trump honest, sincere judgments about the Constitution,” Eisgruber says. “And I think it’s also worth noting that we’ve had Catholics on the Court on both sides of the abortion question.”

That’s true, but in the last quarter-century, Republican Protestant presidents have appointed conservative Catholics, at least in part because of their reliably conservative judicial views.

The children of immigrants, second-generation Catholics, as Jews did before them, have embraced the law as a profession to succeed in. But as Richard Garnett of Notre Dame law school observes, “A whole lot of ethnic Catholics switched sides politically because of the pro-life issue, and so it turned out that for Republican presidents of the ‘80s, ‘90s and into the Bush administration, the people who were in the pool, who were available for nomination, and who shared the views of those presidents on some of these important questions, were people who are Roman Catholic.”

Garnett contends that the real dividing line in the country is not between Catholic and Protestant. Instead, he says, “it’s more the kind of religious versus secular divide.

I couldn’t agree with that last comment more. Supreme Court nominations are such a risky business; presidents want some sort of guarantee about the philosophy they are giving a life tenure to interpret the laws of this country. Though I don’t think justices decide cases based on religious leanings, those leanings create a foundation for how they understand certain aspects of the law.

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